SOURCES OF LAW

Sources of law can be divided into formal and non-formal. By formal sources it is meant, sources of law
which are available in an articulated textual formulation embodied in an authoritative legal document. The
chief examples of such formal sources are Constitutions and Statutes, Executive orders, administrative
regulations, Ordinances, Charters and by-laws of autonomous or semi-autonomous bodies and organizations,
treaties and certain other agreements, and Judicial precedents. On the other hand, non-formal sources of law
are legally significant materials and considerations, which have not received an authoritative or at least
articulated formulations and embodiment in a formalized legal document. Non-formal sources of law may
be Customs or Customary law, Standards of justice, principles of reason and considerations of the nature of
things (natura rerum), Equity, moral convictions and social trends.
Although a formalized, authoritative source of law provides a precise and clear-cut answer to a legal
problem, non-formal sources are also important and should not be ignored. Where a formalized legal
document reveals ambiguities and uncertainties making alternative courses of interpretation possible,
reliance on the non-formal sources becomes mandatory.

FORMAL SOURCES OF LAW

LEGISLATION
Legislation has become the commonest source of new laws or of law reforms today. It is the source of law
which consists in the declaration of acts, legal rules enforceable by a competent authority. To legislate is to
make new laws in any fashion. Legislation includes every expression of the will of the legislature. Every Act
of Parliament is an instance of legislation.
Law that has its source in legislation may be most accurately termed a ‘enacted law’, all other forms being
distinguished as ‘unenacted’. The more familiar term used is, however, ‘statute law’. Blackstone and other
writers use ‘written’ and ‘unwritten’ law to distinguish between legislation and other sources of law.
Legislation may be either supreme or subordinate. Supreme legislation is that which proceeds from the
supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled or
controlled by any other legislative authority. Subordinate legislation is that which proceeds from any
authority other than the sovereign power. Such legislation is subordinate in that it can be repealed by, and
must give way to, sovereign legislation. It may also be of a derivative nature, the power to legislate having
been delegated by the sovereign to the subordinate.
Subordinate legislation may be delegated to the Executive. Certain delegated legislative powers are also
possessed by the judicature. The superior courts have the power of making rules for the regulation of their
own procedure. The Municipal authorities are entrusted by the law with limited and subordinate powers of
establishing special law for the areas under their control. The enactments so authorised are termed by-laws,
and this form of legislation may be distinguished as municipal.
PRECEDENTS
It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority,
which explicitly or implicitly lays down a legal proposition, constitutes a general and formal source of law.
The value of the doctrine of precedent has been much debated. Judges have been criticised on the grounds
that precedents give them the power to transform from law-implementers to law-makers. However, it has
also been argued in favour of Precedents that the practice is necessary to secure the certainty of the law. At a
time of commercial development and constitutional jurisprudence, it is the duty of the superior courts to be
cautious in laying down precedents keeping in mind future developments.
TREATIES
A treaty is an agreement entered into by countries, nations, or other legal persons recognized in international
law. If only two nations or other international persons are the contracting parties, the treaty is called
bilateral; if more than two are involved, it is usually called multilateral. Norms imposed by multilateral
treaties bind only those countries which have manifested their approval by signing the treaty or otherwise
adhering to it.
NON-FORMAL SOURCES OF LAW
CUSTOM
Custom has an important place as a source of law. It is the most important non-formal source of law.
Custom exists as law in every country, though it everywhere tends to lose its importance relatively to other
kinds of law. Usage, or rather the spontaneous evolution by the popular mind of rules of existence and

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general acceptance of which is proved by their customary observance, is no doubt the oldest form of law
making. It marks the transition between morality and law.
Custom can be described as the established patterns of behaviour that can be objectively verified within a
particular social setting. For a custom to be valid and operative as a source of law, it must conform to certain
conditions and requirements. The chief requisites of a valid custom are:-
i) Reasonableness- The most important requisite that a custom has to fulfil so as to become a valid source of
law is that it has to be reasonable.
ii) Immemorial Antiquity- In order to become legally enforceable, a custom has to be followed from ‘time
immemorial’. However, General customs, or customs of the realm which prevail through the whole territory
does not have such a requirement. It is the Local customs, or customs which are limited to a special part of
the realm, which, in order to become law, need to prove the condition of having continued for a long time or
time immemorial.
i) Opinio Necessitatis- Another requirement for a custom to be a valid source of law is that there must be an
ethical conviction on the part of the people following the custom that it is obligatory and not merely
optional. Mere custom itself, as such, does not have any legal authority. It becomes legally effective only
because it is the expression of an underlying principle of right approved by its practitioners.
ii) Conformity with Statute law- A custom must be pleaded and proved to become law.

STANDARDS OF JUSTICE
Standard of Justice is used in cases where there is no statutory provision for a particular case in which the
judge has to depend on his own common sense or ‘standard of justice’ or borrow the relevant legislations
from other countries so that no injustice is done to any party concerned in the case.
In the areas of conflict of laws, general considerations of fairness and justice have played a particularly
important part in developing this particular branch of law. Courts have also resorted to considerations of
justice in interpreting vague and ambiguous clauses in constitutional and statutory documents.
EQUITY
Equity in its technical and scientific legal sense means neither natural justice, nor even all that portion of
natural justice which is susceptible of being judicially enforced. It has, when employed in the language of
English Law, a precise, definite, and limited significance and is used to denote a system of justice in a
particular court. The lay notion of equity is that its purpose is to administer justice in the particular case
without regard to fixed or general rules, and indeed to set aside rules of law when essential to do so to the
ends of natural justice.

In conclusion, most of the law is made by legislation. In some countries, especially in Common Law
countries, the decisions of the superior courts, or precedents, also form a source of law. Customs, too, play a
very important part in the framing of laws, and the rights and liabilities of individuals are determined on the
basis of customs, especially upon matters on which there are no pre-existent legislation, and no precedent to
cover the matter. Sometimes customs are abrogated by the legislation, and at other times are confirmed by
their decisions.
The judges, in passing their judgment, take help from numerous other sources of law to, juristic or
authoritative writings, foreign decisions (Standard of Justice), moral considerations and public opinion. The
law generally comes from these sources. Sources of law are the tools, methods an techniques that are availed
by the legal system in order to carry out its social goals and objectives, which is to provide justice to the
people, most effectively and adequately…

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 LAW SYSTEMS: COMMON LAW AND CONTINENTAL LAW

Common law

The development of common law was essentially a private affair

concerning millions of people throughout dozens of generations and stretching
across several centuries. It derives its force and authority from the universal
consent and immemorial practice of the people. It is the system of jurisprudence
that originated in England and which was later adopted in the U.S. that is based on
precedent instead of statutory laws. It is the traditional law of an area or region, also known as case law. The law
was created by judges when deciding individual disputes or cases.

In Old England there were two types of courts - law and equity. One of the major problems in the
early centuries was to produce a system that was certain in its operation and predictable in its outcomes. Too many
judges were either partial or incompetent, acquiring their positions only by virtue of their rank in society. Thus, a
standardized procedure slowly emerged, based on a system of precedents. A precedent may be defined as a
previously decided case that can serve as an authority in a present controversy.

A precedent (or authority) is a legal case establishing a principle or rule that a court may
need to adopt when deciding subsequent cases with similar issues or facts. The term may also refer to the
collective body of case law that a court should consider when interpreting the law. When a precedent
establishes an important legal principle, or represents new or changed law on a particular issue, that
precedent is often known as a landmark decision.
Long-held custom, which has traditionally been recognized by courts and judges, is the first kind of
precedent. Custom can be so deeply entrenched in the society at large that it gains the force of law. The other type
of precedent is case law. This type of precedent is granted more or less weight in the deliberations of a court
according to a number of factors. Most important is whether the precedent is "on point," that is, does it deal with a
circumstance identical or very similar to the circumstance in the instant case? Generally, decisions of higher courts
(within a particular system of courts) are mandatory precedent on lower courts within that system - that is, the
principle announced by a higher court must be followed in later cases. Decisions of lower courts are not binding on
higher courts, although from time to time a higher court will adopt the reasoning and conclusion of a lower court.

Originally the common law was based on the local customs of the area, and due to its
unwritten nature, would vary slightly on a case-to-case basis. This primarily criminal law grew over time to
encompass private disputes, and due to the doctrine of precedent eventually became a very rigid (inflexible)
and static body of written law. Because of the nature of the common law as well as corruption in the legal
system – many decisions of the courts were harsh and unjust.
People started petitioning the King for relief against unfair judgments and as the number of
petitioners rapidly grew, the King delegated the task of hearing petitions to the Lord Chancellor who
founded the courts of equity. The first Chancellors were required to pass judgment guided by conscience
and based on morals and equality. As these Chancellors had no formal legal training, and were not guided by
precedent, judgments were often widely diverse.
In modern practice, perhaps the most important distinction between law and equity is the set of
remedies each offers. The most common remedy a court of law can award is money damages. Equity,
however, introduces injunctions directing someone either to act or to abstain from action. Often this in
practical terms is more valuable to a litigant. A person whose neighbor will not return his only milk cow,
which wandered onto the neighbor's property, for example, may want that particular cow back and not just

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its monetary value. Or the contract had to be fulfilled (specific performance) if one party did not carry it
out.

Continental law

Civil law or continental law is the predominant system of law in the world, with its origins in
Roman law, especially the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle
Ages by medieval legal scholars, and sets out a comprehensive system of rules, usually codified, that are
applied and interpreted by judges. However, modern systems are descendants of the 19th century
codification movement, during which the most important codes came into existence.
Consequently, Roman law did not completely dominate in Europe. Roman law was a secondary source that
was applied only as long as local customs and local laws lacked a relevant provision on a particular matter.
However, local rules too were interpreted primarily according to Roman law, resulting in its influencing the
main source of law as well. A second characteristic, beyond Roman law foundations, is the extended
codification of the adopted Roman law, i.e. its inclusion into civil codes. The French Napoleonic Code of
1804 and the German civil code of 1900 were the most influential national civil codes.
The concept of codification developed especially during the 17th and 18th century, as an
expression of both Natural Law and the ideas of the Enlightenment. The political ideal of that era was
expressed by the concepts of democracy, protection of property and the rule of law. That ideal required the
creation of certainty of law, through the recording of law and through its uniformity. So, the aforementioned
mix of Roman law and customary and local law ceased to exist, and the road opened for law codification,
which could contribute to the aims of the above mentioned political ideal. Another reason that contributed to
codification was that the notion of the nation state, which was born during the 19th century, required the
recording of the law that would be applicable to that state.

DIFFERENCES BETWEEN CIVIL LAW AND COMMON LAW SYSTEMS

Civil law (continental law) is primarily contrasted against common law. The original
difference is that, historically, common law was law developed by custom, beginning before there were any
written laws and continuing to be applied by courts after there were written laws, too, whereas civil law
developed out of the Roman law of Justinian's Corpus Julis Civilis proceeding from broad legal principles
and the interpretation of doctrinal writings rather than the application of facts to legal fictions.
In later times, civil law became codified as customary law that were local compilations of legal
principles recognized as normative. Sparked by the age of Enlightenment, attempts to codify private law
began during the second half of the 18th century but civil codes with a lasting influence were promulgated
only after the French Revolution, in jurisdictions such as France (with its Napoleonic Code). However,
codification is by no means a defining characteristic of a civil law system, as e.g. the civil law systems of
Scandinavian countries remain largely uncodified, whereas common law jurisdictions have frequently
codified parts of their laws, e.g. in the U.S. Uniform Commercial Code.
Thus, the difference between civil law and common law lies less in the mere fact of
codification, but in the methodological approach to codes and statutes. In civil law countries, legislation
is seen as the primary source of law. Courts thus base their judgments on the provisions of codes and
statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on
the basis of general principles of the code, or by drawing analogies from statutory provisions. By contrast, in
the common law system, cases are the primary source of law, while statutes are only seen as incursions into
the common law and thus interpreted narrowly.
It should not be overlooked that there are considerable differences between the legal
methodologies of various civil law countries. For example, it is often said that common law opinions are
much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very
short and formal in nature. This is in principle true in France, where judges cite only legislation, but not
prior case law.
There are, however, certain sociological differences. Civil law judges are usually trained and
promoted separately from attorneys, whereas common law judges are usually selected from accomplished
and reputable attorneys. Also, the influence of academic writing by law professors on case law tends to be
much greater in civil law countries.

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 The majority of civil law jurisdictions follow an inquisitorial system of adjudication, in which
judges undertake an active investigation of the claims by examining the evidence and preparing reports. In
common law systems, the trial judge, the investigators, and the prosecution are separate functions. After an
investigation has been completed and charges lodged, the trial judge presides over proceedings grounded in
the adversarial system of dispute resolution, where both the prosecution and the defense prepare arguments
to be presented before the court.

LAW SYSTEMS: DIFFERENCES BETWEEN CIVIL LAW AND COMMON LAW SYSTEMS

Civil law (continental law) is primarily contrasted

against common law. The original difference is that,
historically, common law was law developed by custom,
beginning before there were any written laws and continuing to be
applied by courts after there were written laws, too, whereas
civil law developed out of the Roman law of Justinian's Corpus
Julis Civilis proceeding from broad legal principles and the
interpretation of doctrinal writings rather than the application of
facts to legal fictions.
In later times, civil law became codified as customary law that were local compilations of legal
principles recognized as normative. Sparked by the age of Enlightenment, attempts to codify private law
began during the second half of the 18th century but civil codes with a lasting influence were promulgated
only after the French Revolution, in jurisdictions such as France (with its Napoleonic Code). However,
codifications is by no means a defining characteristic of a civil law system, as e.g. the civil law systems of
Scandinavian countries remain largely uncodified, whereas common law jurisdictions have frequently
codified parts of their laws, e.g. in the U.S. Uniform Commercial Code.
Thus, the difference between civil law and common law lies less in the mere fact of
codification, but in the methodological approach to codes and statutes. In civil law countries, legislation
is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes
and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason
extensively on the basis of general principles of the code, or by drawing analogies from statutory provisions.
By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as
incursions into the common law and thus interpreted narrowly.
It should not be overlooked that there are considerable differences between the legal
methodologies of various civil law countries. For example, it is often said that common law opinions are
much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very
short and formal in nature. This is in principle true in France, where judges cite only legislation, but not
prior case law.
There are, however, certain sociological differences. Civil law judges are usually trained and
promoted separately from attorneys, whereas common law judges are usually selected from accomplished
and reputable attorneys. Also, the influence of academic writing by law professors on case law tends to be
much greater in civil law countries.
The majority of civil law jurisdictions follow an inquisitorial system of adjudication, in which
judges undertake an active investigation of the claims by examining the evidence and preparing reports. In
common law systems, the trial judge, the investigators, and the prosecution are separate functions. After an
investigation has been completed and charges lodged, the trial judge presides over proceedings grounded in
the adversarial system of dispute resolution, where both the prosecution and the defense prepare arguments
to be presented before the court.

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